John L. Jerome, Resp’‘t, v. Wilbur W. Flagg, App’lt.(Supreme Court, General Term, Second Department,Headnote
Summons—Service of by publication—Motion for—Affidavit—Construction of.An affidavit used upon a motion for an order for the service of a summons by publication stated "‘that said defendant cannot, with due diligence, be served personally within the state.” • Held, that this must not be regarded solely as a conclusion of law, but as a statement of a fact tending to show that due diligence had been used.
Appeal from an order of a special term in Westchester county denying a motion to vacate an order for service of the summons upon the defendant by publication and to set aside the service thereunder.
The affidavit was as follows:
James P. Sanders, of the city of Yonkers, being duly sworn, says:
I. That he is the attorney for the plaintiff in the above entitled action, and that a copy of the summons and verified complaint in said action is hereto annexed, showing a good cause of action against the defendant herein.
II. That the defendant, Wilbur W. Flagg, is of full age, and is not a resident of the state of New York, but now resides in the city of Denver, in the state of Colorado, which is his post-otfice address. That his place of business is No. 19 Times Building, city of Denver, in the state of Colorado. That said defendant cannot with due diligence be served personally within the state of New York, as he is now, and has been for some time a resident of the said city of Denver, and between which place and the city of Yonkers, where this deponent resides, there is a regular communication by mail.
III. That no previous application for an order of publication or mailing of summons or service without the state has been made herein.
Sworn to before me, this 4th { day of October, 1887. )
James P. Sanders, for resp’t; Holt & Butler, for app’lt.
—This is an appeal from an order denying a motion to vacate an order of publication of summons based upon the ground that the affidavit was insufficient.
The proof was clear and conclusive that the defendant was a resident of Denver and absolutely located there, and, hence, no amount of diligence would avail to effect a personal service in this state.
The case of Kennedy v. The N. Y. L. Insurance and Trust Co., ( 101 N. Y., 487 ) is decisive of the question raised here. The expression in the affidavit of plaintiff’s attorney “That said defendant cannot with due diligence be served personally within the state ” must be regarded not solely as a conclusion of law but as a statement of fact tending to show that due diligence had been used. Such was the construction put upon a like statement in the Kennedy case, (supra).
There is no other point that requires discussion. The order must be affirmed with costs.
Barnard, P. J., concurs; Dykman, J., not sitting.